Richard Evans was convicted in 2010 of the offense of possession of stolen ammunition, in violation of 18 U.S.C. § 922(j), and sentenced to 120 months’ imprisonment. ECF 50; ECF 51. Evans, who is now self-represented, has filed a petition under 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence (ECF 55, “Petition”), along with supporting memorandum and exhibits. ECF 55-1; ECF 55-2; ECF 55-3.[1] Because of the government’s belated response, Evans has also filed a “Motion for Judgment on the Merits of Unopposed § 2255 Motion” (ECF 62, “Motion for Default Judgment”), contending that the government’s failure to timely respond entitles him to default judgment. ECF 62. The government has filed oppositions to both motions, with exhibits (ECF 67; ECF 68), to which Evans has replied. ECF 71, “Reply.”

No hearing is necessary to resolve the Petition or the Motion for Default Judgment. For the reasons that follow, I will deny the Motion for Default Judgment and the Petition.

I. Factual and Procedural Background

On April 30, 2009, Evans was indicted for possession of ammunition by a convicted felon, in violation of 18 U.S.C. § 922(g)(1). ECF 1. In a Superseding Information (ECF 31), Evans was charged with possession of stolen ammunition, in violation of 18 U.S.C. § 922(j). Pursuant to a Plea Agreement dated November 6, 2009 (ECF 44), and signed November 17, 2009 (id. at 8), Evans entered a plea of guilty on January 7, 2010, to the offense of possession of stolen ammunition. See ECF 42; ECF 44; see also ECF 43, “Waiver of Indictment.” The Plea Agreement was entered pursuant to Fed. R. Crim. P. 11(c)(1)(C), in which the parties jointly recommended a sentence of 120 months’ imprisonment. ECF 44 at 5, ¶ 7.

The Plea Agreement included a Statement of Facts which stated, inter alia, that Evans “admitted to ownership” of a “20 gauge shotgun round” and that “the shotgun round had been stolen and that [Evans had] knowledge that the ammunition [had] been stolen.” ECF 44 at 5, ¶ 6. The Statement of Facts also provided that the “20 gauge shotgun round was manufactured outside the State of Maryland and therefore affected interstate commerce prior to its recovery . . . .” Id.[2]

On April 15, 2010, Evans appeared for sentencing. ECF 50. The Court accepted the parties’ recommendation as to a sentence and imposed the agreed-upon sentence of 120 months’ imprisonment. ECF 51 (Judgment, entered April 16, 2010). Evans did not appeal, and his right to appeal expired on or about April 30, 2010. See Fed. R. App. P. 4(b)(1)(A). The one-year statute of limitations for § 2255 petitions expired the following year, on or about April 30, 2011. See 28 U.S.C. § 2255(f).

More than three years later, on September 23, 2014, Evans filed the Petition. ECF 55. Two days later, I issued an Order directing the government to submit its response within sixty days, i.e., by November 25, 2014. ECF 56. When the time elapsed, without a response, I again contacted the government, by Order of January 15, 2015, and directed the government to respond by January 30, 2015. ECF 57. The Petition went unanswered and, eventually, on October 15, 2015, Evans filed a Motion for Default Judgment. ECF 62. In that Motion, Evans argued that his Petition is unopposed. Id. at 3. Further, he claimed that the Petition should be granted on its merits. Id. at 2.

The next day, on October 16, 2015, this Court received a letter from the government, addressing its delayed response. ECF 64. The government explained that the Assistant United States Attorney (“AUSA”) to whom the case was initially assigned had left the office. Because the criminal case was closed at the time of the AUSA’s departure, the case was not reassigned. Id. As a result, my notices to the government were inadvertently mishandled and overlooked. In ECF 67, the government has provided greater detail as to what transpired to cause its delayed response. ECF 67 at 1-2. Moreover, once aware of its error, the government acted swiftly to respond. See ECF 67; ECF 68.

Additional facts are included in the Discussion.

II. Standard of Review

Pursuant to 28 U.S.C. § 2255(a), a prisoner in federal custody may “move the court which imposed the sentence to vacate, set aside or correct the sentence, ” but only on certain grounds: “that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack. . . .” See also United States v. Newbold, 791 F.3d 455, 459 (4th Cir. 2015).

Collateral attack is not a substitute for direct appeal; failure to raise certain issues on direct appeal may render them procedurally defaulted on post-conviction review. United States v. Frady, 456 U.S. 152, 165 (1982); accord Bousely v. United States, 523 U.S. 614, 630 (1998). As a general rule, a petitioner who fails to raise a claim on direct appeal is barred from raising the claim on collateral review. Sanchez-Llamas v. Oregon, 548 U.S. 331, 350-51 (2006). However, this bar generally does not apply to claims pertaining to ineffective assistance of counsel. See, e.g., Massaro v. United States, 538 U.S. 500, 503-04 (2003).

Under 28 U.S.C. § 2255(b), the post-conviction court must hold a hearing “[u]nless the motion and the files and records conclusively show that the prisoner is entitled to no relief. . . .” See, e.g., United States v. White, 366 F.3d 291, 302 (4th Cir. 2004). Courts have determined that a hearing is not necessary where “the motion . . . fail[s] to allege sufficient facts or circumstances upon which the elements of constitutionally deficient performance might properly be found [or] where the defendant has failed to present any affidavits or other evidentiary support for the naked assertions contained in his motion.” United States v. Taylor, 139 F.3d 924, 933 (D.C. Cir. 1998) (internal quotation marks and citation omitted); accord United States v. McGill, 11 F.3d 223, 225-26 (1st Cir. 1993). On the other hand, a hearing is generally “required when a movant presents a colorable Sixth Amendment claim showing disputed material facts and a credibility determination is necessary to resolve this issue.” United States v. Robertson, 219 Fed. App’x 286, 286 (4th Cir. 2007); see also United States v. Ray, 547 Fed. App’x 343, 345 (4th Cir. 2013).

The Petition contains two principal contentions. First, Evans argues that his conviction is unconstitutional because it violated the Tenth Amendment to the Constitution. In this regard, he argues that his crime was purely “local” in nature, and therefore his prosecution under 18 U.S.C. § 922(j) “violated principles of federalism.” ECF 55 at 4. Second, Evans makes a statutory argument that 18 U.S.C. § 922(j) requires that a person possess multiple rounds of ammunition in order to commit the federal offense in issue. In Evans’s view, Congress did not intend § 922(j) to apply to his conduct. ECF 55 at 18.

In addition, I must determine whether Evans is entitled to default judgment. ECF 62. And, based on the provisions of 28 U.S.C. § 2255(f), I must determine whether the Petition is untimely and, if so, subject to equitable tolling. ECF 55 at 12.

A. Default Judgment

Because the government did not timely respond to Evans’s § 2255 Petition, Evans filed a Motion for Default Judgment. ECF 62. As noted, the government ...

Our website includes the first part of the main text of the court's opinion.
To read the entire case, you must purchase the decision for download. With purchase,
you also receive any available docket numbers, case citations or footnotes, dissents
and concurrences that accompany the decision.
Docket numbers and/or citations allow you to research a case further or to use a case in a
legal proceeding. Footnotes (if any) include details of the court's decision. If the document contains a simple affirmation or denial without discussion,
there may not be additional text.

Buy This Entire Record For
$7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.